New York City Department of Education, Impartial Hearing Decision

NYSED # 573079 NYC# 226423

FINDINGS OF FACT AND DECISION

Case No.: 226423

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED]

(hereinafter referred to as “Parent”)

Hearing Dates: 8-1-22; 9-14-22; 9-23-22; 11-7-22; 12-7-22

Actual Record Close Date: 1-6-23

Hearing Officer: Steven P. Forbes

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2022, SEPTEMBER 14, 2022, SEPTEMBER 23, 2022, NOVEMBER 7, 2022, AND DECEMBER 7, 2022

For the Student:

[REDACTED]

For the Department of Education:

[REDACTED]

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about May 16, 2022. In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2019-2020 (May 16, 2020-June 30, 2020), 2020-2021 and 2021-2022 (until December 31, 2021) school years for failure to provide an appropriate program. The Parent requested relief in the form of compensatory education and services.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on June 28, 2022. A hearing regarding the Parent’s request for compensatory education was held on August 1, 2022, September 14, 2022, September 23, 2022, November 7, 2022, and December 7, 2022. The District presented eight exhibits which were admitted into the record.^[1] The District presented five witnesses, [REDACTED], Assistant Principal at [REDACTED], [REDACTED], Physical Therapist, [REDACTED], [REDACTED], Speech and Language Therapist, and the Parent. The Parent presented thirty-six exhibits, which were admitted into the record. The Parent presented seven witnesses, [REDACTED], Speech Pathologist, [REDACTED], Psychologist, [REDACTED], Speech Pathologist, [REDACTED], Director of Therapeutic Services, [REDACTED], [REDACTED], Speech Pathologist, and [REDACTED], Physical Therapist.

The Parent, in their summation, requested a variety of compensatory education and services whereas the District maintained that the entirety of the DPC should be dismissed for a variety of reasons.

FINDINGS OF FACT

The IEPs in Evidence

Multiple IEPs were admitted into evidence at the hearing of this matter. The oldest of those IEPs was developed on April 25, 2018 (P-I). That IEP recommended that the Student be placed in a 12:1+1 classroom setting with related services of Occupational Therapy (2:1, 2x30), Physical Therapy (2:1, 2x30) and Speech and Language Therapy (2:1, 2x30).

The next IEP, developed on October 8, 2020, recommended the same classroom setting (P-G). As to the related services, the Student was mandated to continue with Occupational Therapy (2:1, 2x30), Speech and Language Therapy (modified to 3:1, 1x30 and Group, 1x30); and, Counseling Services (3:1, 1x30). In addition, Parent Counseling and Training (once a month for 30 minutes) was added. Notably, Physical Therapy was removed from the Student’s IEP.

The next IEP, developed on April 19, 2021, recommended the same classroom setting. (P-F). As to the related services, the Student was mandated for Occupational Therapy (modified to 1:1, 4x30), Speech and Language Therapy, bilingual, [REDACTED], (modified to 1:1, 3x60); Physical Therapy (modified to 1:1, 2x30), Counseling Services (3:1, 1x30), and Parenting Counseling and Training (once a month for 30 minutes).^[2]

The next IEP, developed on June 23, 2021 (some two months later), recommended the same classroom setting (P-E). As to the related services, the Student was mandated for Occupational Therapy (unmodified), Speech and Language Therapy (unmodified), Physical Therapy (modified to 1:1, 3x30), Counseling Services (unmodified), and Parent Counseling and Training (unmodified).

Parent’s Request for Compensatory Physical Therapy (PT)

In the Parent’s summation, the Parent requested an order granting the Student a bank of 15.5 hours of compensatory PT.

The District presented one witness on the issue of PT, [REDACTED], Physical Therapist at P.S. [REDACTED].^[3] However, all the documentary evidence on this issue was presented by the Parent. The earliest of those documents was the DOE’s PT Evaluation dated April 12, 2019. (P-S). That evaluation did not recommend PT. Specifically, the evaluator concluded that the Student was participating in physical activities “typical of her peers.” It is unclear from the record whether the Student received any PT during the 2019-2020 school year. In any case, the October 2020 IEP did not recommend PT.

Thereafter, the Parent obtained an IEE conducted by a physical therapist. The report of that evaluation was admitted into evidence. (P-L). The Parent also submitted an affidavit from the evaluator. (P-JJ). The evaluation that was the subject of that report was conducted in February 2021. The report recommended that the Student receive PT (1:1, 2x45). It is worth noting that this evaluation was done virtually. The evaluator testified that she had to rely on what she could see and what the Parent reported. Based on the evaluator’s observations, the Student presented with slight spinal curvature, low muscle tone, and low muscle strength, among other things. This was the basis of the evaluator’s recommendation. Notably, no where in this affidavit, or in her testimony, was there any reference to what the Student’s current status (or present level of performance) is, or, more importantly, whether the Student suffered any adverse effects or regression as a result of the District’s determination to mandate 60 minutes per week of PT, as opposed to the 90 minutes that was recommended. This was undoubtedly because of the fact that the evaluator’s only contact with the Student was when she was conducting her assessment. In any case, some two months after the development of the April 2021 IEP, the District developed yet another IEP, in June 2021, which did, in fact, adopt the mandate of 90 minutes per week. Indeed, the modification of the PT mandate seems to be the primary, if not only, reason that the June 2021 IEP meeting was held given that that was the only modification. The Parent attended this meeting.

Moreover, despite the fact that the Parent claimed in her affidavit that the Student did not receive 90 minutes of PT between April 2021 and December 2021, the District called [REDACTED], the Physical Therapist who worked with the Student at PS [REDACTED]. Mr. [REDACTED] agreed with the determination that the Student did not require PT to the extent that he agreed with the conclusions set forth in the April 2019 DOE evaluation. It is worth noting that Mr. [REDACTED] felt that some of the recommendations of the IEE (i.e., helping the Student riding a bike) were obviously outside the scope of the nature of PT offered by the DOE. To the contrary, according to Mr. [REDACTED], the purpose of school-based PT was to make sure the Student could function independently and to insure that her physical disabilities did not impede the Student’s ability to access her education. (T., pages 222-225).

Nonetheless, the PT continued on the basis of the outcome of the IEE and commencing in June 2021, the Student began to receive PT three times a week for 90 minutes. Moreover, notwithstanding the fact that Mr. [REDACTED] repeatedly tried to convince the Parent that the Student did not require ongoing PT, the Parent insisted that the Student continue to receive the PT. There is no evidence in the record to suggest that Mr. [REDACTED], or anyone else at P.S. [REDACTED] unilaterally modified the IEP or provided the Student with less than the IEP mandated. Moreover, it is safe to infer that the Parent, who obviously was having conversations with Mr. [REDACTED] about the need for therapy, would have known that.

This fact calls the Parent’s credibility into question to the extent that the Parent requested relief based upon facts which she almost certainly knew not to be true. Even in the absence of Mr. [REDACTED]’s testimony, the Parent acknowledged that she was present for all IEP meetings that occurred (other than the June 2022 meeting). Surely, the Parent would have then been aware of the fact that the District had reconvened the CSE in June 2021, almost exclusively for this purpose, and acceded to the Parent’s wishes, and the recommendations of the IEE, and mandated 90 minutes of PT. The fact that she signed a sworn affidavit essentially contradicting this point is concerning, to say the least.

Bilingual Speech and Language Therapy (SLT)

In the Parent’s closing, the Parent also requested a bank of 276 hours of compensatory, bilingual, SLT.^[4]

With regard to this claim, the District presented both documentary evidence and witnesses. As to the former, the District presented two progress reports. (D-6; D-7). These reports were drafted by [REDACTED], who worked with the Student and who was also a witness at the hearing. Both reports indicate that the Student either met the SLT goals set forth in the IEP or was making significant progress toward reaching those goals.

There was considerable discussion throughout the course of the hearing about whether the Student required bilingual speech and language therapy. On the one hand, the Parent submitted a report from a bilingual the Language and [REDACTED], co-signed by speech pathologists, [REDACTED] and [REDACTED], which “strongly recommended” bilingual speech and language therapy. (P-P). It is perhaps worth noting that the assessment that this report was based on was conducted September 28, 2020, when the Student was about redacted years old. The Student is now approaching her redacted birthday. Moreover, neither of the evaluators ever worked with the Student beyond this assessment.

On the other hand, the District’s witness, Ms. [REDACTED], a certified as a bilingual speech and language therapist, was employed as a teacher of speech improvement for the DOE for the past seven years at P.S. [REDACTED]. Ms. [REDACTED] is trained to determine whether a student is having difficulty with speech or just the different languages they speak. She testified that she is specifically not trying to teach a student a specific language when she is working with them. Ms. [REDACTED], and whatever student she is working with, work in the language of the student’s preference.

Ms. [REDACTED] was the Student’s speech teacher for three years from 2018-2021. As a result, she possessed extensive knowledge about the Student. Ms. [REDACTED] indicated that she did not previously provide bilingual services because the mandate in the earlier IEPs was for English. Based on her experience with the Student, she felt the Student’s preferred language was English because that was what the Student always responded with both in their sessions and in the classroom.^[5] Also, when Ms. [REDACTED] did provide additional instruction to the Student in [REDACTED], it did not help and so she did not believe the Student required bilingual speech and language therapy.

Ms. [REDACTED] reviewed the DOE’s bilingual speech and language evaluation (P-T – conducted in 2019) and the conclusion was that the Student was shifting to English and got exposure to [REDACTED] at home. There was nothing in that report that indicated that [REDACTED] was helping her communication or comprehension.

Following the October 2020 IEP, Ms. [REDACTED] continued to work with the Student and she felt that the Student was making progress with regard to the goals set forth in that IEP. As stated above, Ms. [REDACTED]’s progress reports, which were admitted into evidence, similarly reflect that the Student was making progress. At the October 2020 meeting, Ms. [REDACTED] recommended continued speech and language therapy, 1:1, once per week for 30 minutes and group, once a week for 30 minutes so that the Ms. [REDACTED] could work with her individually and the Student would get the social benefit of working in a group.

During the meeting which led up to the development of the April 2021 IEP, Ms. [REDACTED]’s recommendation remained the same as those contained in the October 2020 IEP because she felt, that although the Student was making progress, the Student still required support. The goals were modified to include more language-based skills as opposed to phonological. It was at this meeting that the Parent asked for Ms. [REDACTED] to speak more [REDACTED] with the Student because the Student was not speaking enough [REDACTED] in the home. Despite the fact that this was not a basis to mandate bilingual speech and language services, the IEP decided to accommodate the Parent. It is unclear why. According to Ms. [REDACTED], no one else at the April 2021 IEP meeting, other than the Parent, was advocating for bilingual S/L therapy.

Ms. [REDACTED] reviewed the independent bilingual evaluation (P-P). She disagreed with the recommendation that she needed bilingual services. Moreover, she did not believe it would have made any difference to the Student to have been provided the S/L therapy over the years in [REDACTED]. Specifically, she believed that the Student’s comprehension was far stronger in English.

As to the independent bilingual SL evaluation, conducted on or about September 2020, the evaluator, [REDACTED], noted that the Student spoke both [REDACTED] and English in her home. (P-P). It is highly noteworthy that nowhere in this evaluation does it state that the Student’s dominant language is [REDACTED]. Indeed, there is not even a mention that the Student demonstrated a better understanding of any particular words, concepts or phrases in [REDACTED].

The Parent’s other witness, [REDACTED], also testified at the hearing of this matter. (P-HH). According to Ms. [REDACTED], the Student “shows dominance in both English and [REDACTED].” This statement makes absolutely no sense. Moreover, her own affidavit reflects that the Student regularly initiated conversations in English and resorted to [REDACTED] primarily when speaking to someone who the Student knows to be only [REDACTED] speaking. Added to that is Ms. [REDACTED]’s statement that the Student used only English in school but somehow still required bilingual SLT because the Student “needs the desire and motivation” to continue speaking [REDACTED] at home. It goes without say that that is emphatically not the purpose of school based SLT.

As a result, there was insufficient evidence in the record to suggest that the Student required bilingual SLT.

In any case, based on her assessment, Ms. [REDACTED] recommended 276 hours of compensatory bilingual SLT. This recommendation was based on what Ms. [REDACTED] believed the Student should have received during the 2018-2019 and 2019-2020 school years. To the extent that this information was known to the Parent, at the latest, as of September 2020, it is entirely unclear why the Parent waited until May 2022 to file a request for compensatory SLT. Either way, the District is correct that the Parent did not raise any claims in the DPC regarding the 2018-2019 school year. As a result, that part of the claim, or 138 hours, is not properly before me. Even if it were, the District is also correct that that claim is barred by the Statute of Limitations.

As to the claim based on the 2019-2020 school year, it is questionable whether that claim is barred by the Statute of Limitations. However, whether it is or is not, the Parent has failed to demonstrate that the Student either required or would have benefitted from that therapy.

Parent’s Request for Compensatory Education In Parent’s closing, Parent requested a bank of 600 hours of compensatory education.

Initially, as is always the case, it is first necessary to determine with the District provided the Student with a FAPE during the years in question. The Parent’s affidavit, provides no insight as to the basis for this request, other than to rely on the recommendation that was made by [REDACTED], Ed.D. Dr. [REDACTED] submitted an affidavit and testified at this proceeding. (P-Y). According to her affidavit, Dr. [REDACTED] reviewed the neuropsychological evaluation of [REDACTED], Ph.D. (P-Q). Dr. [REDACTED] also reviewed the DOE’s Psychological Update (P-N) and the [REDACTED] SL Evaluation (P-P). Dr. [REDACTED] also reviewed the IEP dated June 2022 which is not the subject of this hearing. She also reviewed a “May 4, 2021” IEP which does not exist, but which is presumably the IEP developed on April 19, 2021, which was scheduled to be implemented on May 4, 2021. Dr. [REDACTED] also conducted a one-on-one assessment of the Student in July 2021 that lasted one hour. Notably, Dr. [REDACTED] did not review any of the Student’s school records or speak to any of the Student’s providers or teachers.

At the time Dr. [REDACTED] conducted her evaluation, the Student had just completed the 2nd grade. According to Dr. [REDACTED], the Student tested at a “upper first grade level for both spelling and mathematics, an upper second grade level for decoding, a first grade level for writing, and a second grade level for reading comprehension, all of which are below her expected grade levels.” (P-Y). Notably, Dr. [REDACTED] does not indicate whether she was comparing the Student to her non-disabled peers or similarly situated peers.

Dr. [REDACTED]’s affidavit is extremely short on detail. Specifically, while Dr. [REDACTED] recommended that the Student receive a bank of 600 hours of compensatory education, she does not elaborate as to how she arrived at that number, what regression, if any, those hours were supposed to address, what she believed, in her opinion, the Student should have been receiving that the Student had not received (or at what frequency), or, for that matter, how any of those additional services would have benefitted the Student.

Dr. [REDACTED] also seemed to take no notice of the fact that the Student was engaged in a plethora of related services which the Student received on a weekly basis including OT, PT, SLT, and Counseling Services. It was left unsaid when or where the Student should have received the services contemplated by Dr. [REDACTED].

On the other hand, [REDACTED], the Assistant Principal at P.S. [REDACTED]X also testified at this hearing on behalf of the District. (T., pages 191-218). According to Ms. [REDACTED], the school utilized an assessment called SANDI used to track student progress and specific needs and skills in a variety of areas, in reading, writing, math and is aligned to Common Core. Assessments are conducted in the classroom by teachers and related services providers to assess skills and needs and inform IEP. The school utilized several other types of assessments (literacy, Fountas and Pinnell, math foundations, etc). According to Ms. [REDACTED], the staff believed that the Student was making progress while attending there. The Student was participating more, reading better, and she was the best performing (academically) in her class. Notably, the Parent’s cross-examination of Ms. [REDACTED] made almost no effort to contradict any of these claims. As a result, the record, as it stands, reflects that the Student made meaningful academic progress during the years applicable here.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see, Forest Grove v. T.A., 129 S. Ct. 2484[2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra.

In the instant matter, the Parent sought compensatory physical therapy, bilingual speech and language therapy, and compensatory education. Each will be addressed separately.

As to the Parent’s request for compensatory physical therapy, the whole premise of Parent’s claim was based on the Parent’s assertion that between April 2021 and December 2021 the Student should have received 90 minutes per week of physical therapy and that the District only provided 60 minutes per week. To begin with, this was not even accurate. Moreover, it is more than a little disconcerting that the Parent would make this claim knowing full well that there was an IEP from June 2021, placed in evidence by the Parent, that specifically mandated that the Student receive 90 minutes of PT per week. The attendance page of that meeting even reflects that the Parent participated in that meeting. Moreover, the District’s witness specifically testified that commencing in June 2021, the Student did, in fact, receive 90 minutes per week of physical therapy. The Parent’s lack of credibility on this issue also has the effect of undermining the reliability of the PT IEE inasmuch as the evaluator specifically indicated that she had to rely on what the Parent reported.

However, even if, for the sake of argument, it could be said that the Student did not receive the full complement of physical therapy over the applicable period of time, the Parent completely failed to demonstrate the need for or appropriateness of this therapy. Specifically, the Parent’s witness based her recommendation on a single evaluation of the Student which was conducted remotely, and a review of relevant documents. Meanwhile, the Student’s actual physical therapist, who had been working with the Student for years, did not believe the Student required any physical therapy at all. This determination was further supported by the DOE’s evaluation conducted in April 2019. In summary, the Parent neither demonstrated that the Student was denied any aspect of the physical therapy mandate, nor that there was even a need for that therapy. As a result, I am constrained to find that, with respect to PT, the District fulfilled its obligation to the Student and the Parent’s request for an order for compensatory physical therapy must be denied.

As to the Parent’s request for compensatory bilingual speech and language therapy, it is first worth mentioning that there is no objective basis in the record to conclude that the Student required bilingual services. None. First of all, the therapist who worked with the Student at P.S. [REDACTED] specifically indicated that the Student’s preferred language was English. Second, the Parent’s own witness, Ms. [REDACTED], testified that the primary, if not entire, reason that the Student “needed” bilingual SLT was so that she could communicate at home better. This conclusion lends considerable credence to the evidence in the record that suggests that the only reason that the CSE mandated bilingual SLT was because the Parent insisted upon it. No one else at the April 2021 IEP meeting was suggesting that the Student required it. It bears repeating here that that is absolutely not the purpose of school based SLT which is to remove impediments that prevent the Student from fully accessing her education. It is also worth pointing out that, as was the case with the Parent’s claim for compensatory physical therapy, the Parent was insisting on receiving services that the Student did not need.

As a result of the above, the Parent’s claim for compensatory bilingual speech and language therapy must also be denied as, alternatively, barred by the Statute of Limitations and/or to the extent that the Parent failed to establish that said services were appropriate for the Student.

As to the Parent’s request for compensatory education, this request must also be denied. The Parent’s own witness, Dr. [REDACTED], who conducted an extremely brief evaluation of the Student and reviewed the bare minimum of documentation, concluded that the Student was performing either at, above, or fairly close to grade level across a broad array of academic areas. Given the Student’s various challenges and disabilities, this was a remarkable achievement for the Student as well as convincing evidence that the District did, in fact, offer the Student a FAPE.

Although this conclusion precludes the need to assess the appropriateness of the proposed remedy from the Parent, it bears mentioning that Dr. [REDACTED]’s recommendation that the Student receive 600 hours of compensatory education seems to almost have been pulled from thin air. Aside from the limited scope of her evaluation, and the limited documents she reviewed, there is no justification whatsoever set forth in Dr. [REDACTED]’s affidavit as to how she arrived at this number, let alone why, or what she hoped to achieve with the Student should these hours be granted. Given that the Student was, according to Ms. [REDACTED], performing at the top of her class academically, it was also entirely unclear what else the District was supposed to do for the Student.

As a final note, no one would dispute that the Student has a disability and required (and still requires) ongoing support. However, a recurrent theme in this proceeding is that the Parent continually insisted upon services that she either knew, or had good reason to know, that the Student did not need. This was certainly the case with regard to bilingual speech and language therapy. Nearly every witness who testified indicated that the Student’s dominant (and strongly preferred) language was English. Nonetheless, the Parent forged ahead and continually insisted that the District provide bilingual SLT just so that the Student would be more comfortable speaking [REDACTED] at home, a claim which was confirmed by Ms. [REDACTED]. This was obviously not an appropriate means to insist on bilingual SLT.

The same can be said of the request for compensatory physical therapy. Mr. [REDACTED], who worked with the Student for years, and was intimately familiar with the Student’s needs, repeatedly tried to convince the Parent that the Student did not require PT. Instead, the Parent accepted the recommendation of an independent evaluator who did not even physically interact with the child, and actually included as one of the child’s “goals” that she should be able to operate a two-wheeled bicycle. Rather than listen to the physical therapist who indicated that the Student did not need PT at all, the Parent insisted the Student receive more PT. It can hardly benefit any student to have to be removed from a social classroom setting to submit to unnecessary services. In fact, it is almost certainly harmful to the Student.

Finally, the Parent continues to demand hundreds of hours of compensatory education based on essentially nothing. The Student made consistent and meaningful progress at P.S. [REDACTED]. She was literally at the top of her class academically. Clearly, the District provided the Student with a FAPE. And, again, it was the Parent, insisting on more services which were clearly not necessary.

Based on the evidence presented by the parties, the Parent’s request for compensatory services and education must be denied.

DECISION

Based on a review of the record and the details mentioned above, I find that the District provided the Student a FAPE to the Student for the 2019-2020, 2020-2021 and 2021-2022 school years.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered that the DPC is dismissed and the relief sought therein is denied.

DATED: January 8, 2023

_Steven P. Forbes____

Steven P. Forbes

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

• • STATE EDUCATION DEPARTMENT OF NEW YORK
• • _______________________________________________X
• • In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 226423
• • Regulations of the Commissioner of Education Regarding,
• • STUDENT, a minor, by and through his/her
• • Parent(s),
• • Petitioners
• • -against-
• • NEW YORK CITY DEPARTMENT OF EDUCATION,
• • Respondent.
• • ________________________________________________X
• • CERTIFICATION OF RECORD
• • The record before me as the Hearing Officer in this matter of the following:
• • Administrative Due Process Complaint dated May 16, 2022.
• • Notice of Hearing and Appointment dated June 28, 2022.
• • District’s Exhibits 1-8 totaling thirty-seven (37) pages.
• • Parent’s Exhibits A-JJ totaling three hundred thirty-eight (338) pages.
• • The written transcript of the hearing totaling three hundred thirty-seven (337) pages.
• • Findings of Fact and Decision dated January 8, 2023.
• • I, Steven P. Forbes, the Hearing Officer in this matter, do hereby certify that the attached record is accurate and encompasses the entire record in the above-entitled matter as of this date. I further certify that the materials forwarded herewith are the original or a true copy of the original documents and/or other tangible items that constitute the record in this matter.
• • EXECUTED this 8th day of January, 2023.
• • __Steven P. Forbes_______
• • STEVEN P. FORBES
• • Impartial Hearing Officer

DISTRICT EVIDENCE

No. Description Date Pages

1 Social History Update 4-2-19 6

2 Counseling Progress Report 4-12-21 2

3 Letter from Doctor 3-26-21 1

4 OT Progress Report N/A 3

5 Parent Checklist 4-5-19 2

6 SLT Progress Report 8-11-20 3

7 SLT Progress Report 4-12-21 3

8 Social History Update 1-15-21 6

PARENT EVIDENCE

No. Description Date Pages

A DPC 5-16-22 9

B NYSED Findings 9-29-20 4

C FOFD 2-2-20 8

D IEP 6-21-22 28

E IEP 6-23-21 21

F IEP 4-19-21 30

G IEP 10-8-20 30

H Remote Learning Plan 4-29-20 2

I IEP 4-25-18 13

J FBA 6-13-21 12

K Teacher Report 4-1-21 18

L PT Evaluation 3-26-21 6

M OT Evaluation 3-26-21 7

N DOE Psychological Update 3-22-21 4

O OT/PT Clinical Guide 10-22-20 2

P Bilingual SLT Evaluation 9-28-20 13

Q Neuropsychological Evaluation 9-18-20 13

R DOE FBA 5-6-19 7

S DOE PT Evaluation 4-12-19 5

T DOE Bilingual SLT Evaluation 4-9-19 3

U Classroom Observation 4-8-19 3

V DOE OT Evaluation 4-5-19 7

W DOE Psychoeducational Evaluation 1-26-18 6

X Affidavit – Parent 7-25-22 4

Y Affidavit – [REDACTED], Ed.D. 7-25-22 10

Z Stipulation and Order 12-9-21 8

AA SANDI Webpage 9-16-22 4

BB Request for IEEs 2-5-19 4

CC WITHDRAWN

DD NYSED Certification Lookup 9-14-22 2

EE Affidavit – [REDACTED], Ph.D. 10-27-22 9

FF Affidavit - [REDACTED] 10-26-22 4

GG Affidavit - [REDACTED] 10-24-22 7

HH Affidavit - [REDACTED] 10-31-22 3

II Affidavit - [REDACTED] 10-27-22 8

JJ Affidavit – [REDACTED] 11-2-22 4

IHO EVIDENCE

No. Description Date Pages

None

Footnotes

[1] The list of exhibits is attached.

[2] In the Parent’s summation, there is no request for compensatory OT. This was due to the fact that the IEP team adopted the recommendations of the IEE (P-M) and modified the Student’s OT as set forth above. There is no evidence in the record that the Student did not receive the requisite amount of OT.

[3] The District, in its closing, spends considerable time addressing the PT the Student received or did not receive prior to the April 2021 IEP. That was not the basis of the Parent’s claim, which was for the period between April 2021 and December 2021 when the Student purportedly received 60 minutes of PT, as opposed to the 90 minutes that the IEE recommended.

[4] In the Parent’s opening, and in the Parent’s affidavit, the Parent was initially asking for 441 hours of compensatory SLT. (T., page 17; P-X).

[5] This was independently confirmed by the Parent’s own witness, [REDACTED], Ph.D., who conducted the independent neuropsychological assessment of the Student who indicated that the Student spoke exclusively in English throughout her evaluation except when addressed in [REDACTED]. (P-Q, page 13). It was also confirmed by [REDACTED], Assistant Principal at the Student’s school who only spoke to the Student in English, even though Ms. [REDACTED] also speaks [REDACTED]. (T., 214-215).